Justice – talking instead of judging

Flipcharts instead of dictaphones and story books instead of legal texts. Where a bulky conference table usually divides the room, there is a circle of armchairs: in the rooms for the court settlement procedure, there is a living room atmosphere in court. This is also essential, said Adelheid Beer, chairwoman of the specialist group “Agreement – alternative dispute resolution in court” of the Austrian Judges’ Association this week at a meeting of experts from different areas of the legal industry.

Because the judicial settlement procedure is not about the judge making the decision. Rather, it is the parties themselves who should work out an amicable solution to their problems in a dispute – under the supervision of an independent judge without decision-making authority who is specially trained in the areas of communication and mediation. He must not be responsible for the proceedings, and legal representatives may also be present. The arbitration judge does not give any legal advice and does not make his own evaluation or assessment or forecast the success or failure of the lawsuit. If the settlement procedure is successful, the judicial procedure still has to be ended with the judge with an executable settlement or an “eternal rest”.

No additional court costs

In contrast to classic mediation with impartial mediators who conduct the discussions, there are no additional court costs for the settlement procedure. According to the President of the Judges’ Association Sabine Matejka, the main purpose of this procedure is to find a sustainable solution that does not allow the parties to part in deep disputes. The fact that it usually happens very quickly, usually within one or two meetings, is of course a “good side effect,” said Matejka at the meeting.

In Austria, the judicial settlement procedure was developed some time ago, but has not really caught on – in contrast to Germany or Switzerland. One reason could be that the legal basis is still very thin. The problem is that there is no duty of confidentiality, said Robert Fucik, chief prosecutor at the Ministry of Justice. “There is no legal guarantee that you can say you can speak so freely that it cannot be used against you afterwards,” says Fucik: It should therefore be transferred to the regular permanent state.

Eduard Strauss, a retired civil judge and former Senate President of the Vienna Higher Regional Court, also spoke out in favor of “putting it in the Code of Civil Procedure In any case, the judicial settlement process must continue, recommended by judges more often and thus become better known. Strauss himself had already been involved in settlement processes, he said, and had generally always tried to reach comparisons. With the argument told the parties “that it would be better for them to settle the matter privately, because otherwise they would be at my mercy,” said Strauss with a wink.

A well-known case of judicial settlement proceedings in Austria is that of tennis player Dominic Thiem. In March of the previous year, Thiem and his long-time coach G√ľnter Bresnik agreed on an out-of-court settlement in the legal dispute over financial claims from the ex-coach. This was preceded by court settlement proceedings before the Regional Court for Civil Matters in Vienna.

Not all cases are suitable for this, said Birgit Rendl, a judge at the Vienna Inner City District Court. Family law, for example, is good, but it is more difficult with existing law. “As soon as there is a certain personal level between the parties, we recommend the settlement process,” said Rendl.

know alternative courses of action

“Solutions that are worked out together hold up better,” added Ulrike Frauenberger-Pfeiler from the Institute for Civil Procedure Law at the University of Vienna. In her opinion, it is essential for a successful settlement process that the parties know all the alternative courses of action – that is, which ones there are and how high the chances are of winning. “Or the level of suffering is already very high,” says Frauenberger-Pfeiler.

The side of the lawyers is still missing – and thus all those who could fear that the “cash cow” will die as a result of the faster judicial settlement procedure. “I’ve always made good money with these procedures,” said attorney Eric Heinke, who is Vice President of the Vienna Bar Association. “The satisfied client will recommend me – and I have the snowball effect.” A legal basis would be urgently needed in his eyes.

satisfaction as a goal

According to Beer, the chairperson of the specialist group, satisfaction on all sides is the declared goal of the judicial settlement process. “Ms. Judge, we’ve just made up,” one party said to her at the end of such a process, for example, when she just came back from copying. It was about noise pollution in a Viennese municipal building, one party had children, the other didn’t.

“During the conversation, it turned out that one of the parties was seriously ill and received treatment about once a month, after which she was sensitive to noise and needed rest,” reported Beer. In the end, the solution was very simple: the two exchanged their cell phone numbers, and the sick party now calls the other whenever they have treatment. This takes into account during this time.

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